Citation Nr: 9823439
Decision Date: 07/31/98 Archive Date: 08/04/98
DOCKET NO. 97–29 852 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased rating for chronic laryngitis,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. P. Kennedy, Associate Counsel
REMAND
The veteran served on active duty from June 1950 to June
1953, and from August 1956 to August 1960.
This appeal comes before the Board of Veteran’ Appeals
(Board) from a September 1996 rating decision in which
service connection for chronic laryngitis was granted with an
evaluation of a 10 percent disability.
The Board has reviewed the record and finds that additional
development is necessary before appellate action may be
completed.
The Board notes that the veteran submitted additional
evidence at his hearing before the undersigned Member of the
Board in March 1998. This evidence is comprised of
Department of Veterans Affairs (VA) medical examination
records from November 1997, as well as the evaluations and
operative report from the veteran’s January 1998 surgery.
The veteran specifically did not waive regional office (RO)
consideration of these records, and the RO has not reviewed
them. “Any pertinent evidence submitted by the appellant or
representative … as well as any such evidence referred to the
Board by the originating agency … must be referred to the
agency or original jurisdiction for review and preparation of
a Supplemental Statement of the Case unless this procedural
right is waived by the appellant or representative or unless
the Board determines that the benefit, or benefits, to which
the evidence relates may be allowed on appeal without such
referral. 38 C.F.R. § 20.1304(c) (1997). See Thurber v.
Brown, 5 Vet. App. 119, 126 (1993). The subject evidence is
pertinent, because it concerns treatment for the chronic
laryngitis condition at issue in this appeal.
The Board notes that the veteran has submitted to VA medical
examinations as recently as November 1997. However, his
subsequent surgery in January 1998 necessitates further VA
examination to determine the veteran’s current voice
condition. As the RO will be scheduling a VA examination in
connection with the remand, the appellant is hereby notified
that it is the appellant’s responsibility to report for the
examination and to cooperate in the development of the case,
and that the consequences of failure to report for a VA
examination without good cause may include denial of the
claim. 38 C.F.R. §§ 3.158, 3.655 (1997).
In addition, the Board notes that, at his hearing before the
undersigned Member of the Board, the veteran specifically
raised consideration of entitlement to an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (1997), on the basis
that his disability markedly interferes with his employment.
The RO has not specifically discussed this matter in its
rating decision.
Accordingly, in order to ensure that the VA has met its duty
to assist the veteran in developing the facts pertinent to
his claim, and to ensure full compliance with due process
requirements, this case is REMANDED to the RO for the
following actions:
1. The RO should obtain the names and
addresses of all VA and civilian medical
care providers who have treated the
veteran for his service connected chronic
laryngitis since January 1998.
2. Following receipt of such information
and duly executed authorization for the
release of private medical records, the
RO should request that all identified
health care providers furnish legible
copies of all medical records compiled in
conjunction with treatment accorded the
veteran for chronic laryngitis.
3. The RO should afford the veteran a VA
examination to determine the nature and
extent of his current voice disability.
All indicated tests and studies should be
accomplished. The claims folder,
including all records obtained per this
remand, and a copy of this remand must be
made available to the examiner in
conjunction with the examination.
4. The RO should review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the VA
examination report. If the report is
inadequate for evaluation purposes, it
must be returned to the examiner for
corrective action. See 38 U.S.C.A. § 4.2
(1997). “If the [examination] report
does not contain sufficient detail it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes.” Green v. Derwinski, 1 Vet.
App. 121,124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
Ardison v. Brown, 6 Vet. App. 405, 407
(1994).
5. Following receipt of any and all such
records and the completion of the VA
examination, the RO should again review
the veteran’s claim. In particular, the
RO should address whether to refer the
case for consideration of an
extraschedular evaluation under 38 C.F.R.
§ 3.321(b)(1). If the decision remains
in any way adverse to the veteran, he and
his representative should be furnished
with a supplemental statement of the
case, and with a reasonable period of
time within which to respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified. The appellant may present additional
evidence or argument while the case is in remand status at
the RO. Cf. Quarles v. Derwinski, 3 Vet. App.129, 141
(1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MARY GALLAGHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
- 2 -